The US Government is seeking new authorities to ban TikTok as a national security threat. If it sounds like deja vu, that’s because it is. In the year and three months since our study debunking the claims that TikTok is a national security threat, no new evidence or arguments have surfaced to warrant a substantive reconsideration. So why is this happening? In this article, IGP considers the Gallagher-Krishnamoorthi bill that passed the House, how we got here, and what is at stake if the new Congressional authorities to ban TikTok are ratified.
What is being proposed
In what was clearly a coordinated effort to catch opponents off guard by moving extremely quickly, the House of Representatives passed H.R.7521, the Protecting Americans from Foreign Adversary Controlled Applications Act, on March 13th, 2024 – only 8 days after it was introduced. If this bill becomes law, it would require the AppStores and content delivery/hosting services to stop distributing, maintaining, or updating the TikTok App within 6 months. The civil penalty for noncompliance is a prohibitive $5000 for each user served (somewhere around 7.5e11 dollars), a de facto ban. TikTok US would also be required to release all personal and account-based user data in a machine-readable format upon request, which they already do. The authors of the bill falsely claim their bill will “Empower Users to Switch Platforms (…) All users would be able to download their data and content and transition to another platform.” While tools exist to cross-post content when separate accounts on Instagram and TikTok exist, it is currently impossible to download JSON from TikTok and seamlessly upload to Instagram. One may be able to get their username, bio, and even descriptions from videos from the JSON data but none of the actual content or followers will be there. They are trying to kill TikTok, not transfer it.
As of our publication date, a companion bill in the Senate has yet to be introduced, but President Biden has indicated he will ratify a TikTok ban bill if sent to his desk.
The bill provides an exception to banning TikTok outright, a “qualified divestiture” that occurs within 6 months. What puts the “qualified” in “divestiture” is an executive branch decision, likely the Committee on Foreign Investment in the United States (CFIUS) or Team Telecom. The acquiring entity is also prohibited from having more than 20% direct or indirect ownership from China or any other foreign adversary.
Reps. Gallagher and Krishnamoorthi, the key advocates of a ban, are at great pains to present the bill as “not a ban,” stating “As long as the ownership structure has changed, TikTok can continue, and Americans can say whatever the heck they want on the platform.” Their point was echoed by many Democratic and Republican politicians. Unsurprisingly, all of the people claiming it is not a ban are people who advocated and supported a ban a few months ago. Denying that it is a ban is clearly meant to preempt First Amendment claims.
Why it’s a Ban
There are five major problems for those claiming this isn’t a first amendment issue, however.
- First, it’s clear that access to content is at the heart of the Government’s case against TikTok. Despite the absence of any evidence, the claims that China will use the app to brainwash Americans is still the primary reason cited for the action. Adding to that, the presence of anti-Israel, pro-Palestinian videos about the war in Gaza played a big role in efforts to revive a ban (see more detail below).
- Second, the divestiture has no economic rationale (it would actually reduce competition) and there is no precedent for a forced sale of this scope and scale. The Grindr divestiture was less complicated and it still took about a year to complete. If the USG was serious about a seamless ownership transfer, they wouldn’t have come up with a figure like 180 days. In reality, divestiture is the sugar-coating for a law that will deprive 170 million Americans of their choice in social media, and orphan millions of influencers and businesses who rely on the platform.
- Third, the USG will only allow a “qualified” divestiture. This means it will not be an open and competitive bidding process. Former Treasury Secretary Mnuchin was reported to be putting together an investment group for the acquisition. The optics of a former and potentially future Treasury Secretary maneuvering to pick up the pieces from a government-imposed divestiture makes the U.S. look like Suharto’s Indonesia. But more importantly, whoever the executive branch allows to acquire TikTok will likely provide guarantees of an ‘open line of communication’ regarding government censorship and data access requests. Today, the USG’s trending narrative problem is anti-Israel sentiment, tomorrow it will be a different issue, but it will be much easier to control the narrative after Gen Z’s move over to Instagram, given the ‘open lines of communication’ between American social media and the USG.
- Fourth, Beijing has indicated it will block ByteDance from divesting, invoking its export control laws. Just as the USG has strongly opposed efforts by foreign governments to expropriate American companies’ intellectual property in the past, China would be fully justified in opposing a forcible transfer of ByteDance’s proprietary algorithm to an American company. And unless the algorithms go with the sale, it’s not TikTok anymore. While authorities in Beijing have never been very happy with ByteDance, they won’t pass up an opportunity to call out US double standards on speech issues, which helps them to justify their own censorship. Hong Kong’s National Security Law also justifies censoring access to foreign information, doesn’t it?
- Finally, TikTok agreed over a year ago, in its negotiations with the Committee on Foreign Investment in the U.S. (CFIUS), to institute a draconian data localization scheme known as Project Texas. The agreement would allow all American user data to be controlled by Oracle, supervised by a US company (USDS) with US government-approved board members, and give US nationals approval of all changes in the software. All of the alleged national security harms of TikTok would be removed right there. Project Texas gives the USG truly CCP-type control of a social media app!
So the U.S. knows that a divestiture is operationally impractical, knows that it won’t be allowed by the Chinese, and knows that it doesn’t give them any data or algorithm control they couldn’t already get through a CFIUS agreement. This means that the so-called ownership change requirement is just a ban in disguise, a fig leaf for first amendment law violations.
How we got back to square one on TikTok
The return of the TikTok ban makes it clear that there is a concerted political campaign within the USG, driven by the Justice Department and probably also intel and military agencies. They know that most Americans do not want a ban and they know its constitutionality is suspect, but they are dedicated to pursuing it as a matter of policy. And in case you were wondering, now we know that the Biden administration is as bad on this issue as its predecessor. So it is useful to trace the steps that got us where we are today.
Trump signed an Executive Order to ban TikTok in 2020 using the International Emergency Economic Powers Act (IEEPA). The ban was later rejected by two courts citing the informational materials exemption, also known as the Berman Amendment, which limits the emergency powers from applying to limiting free expression. In early 2023, Sen. Warner sought even broader powers over information and communications technology with the RESTRICT Act, but that bill’s overtly authoritarian delegation of power to the Executive Branch was so extreme that it generated opposition from the right as well as the left. Sen. Cantwell’s yet-to-be published Guard Act emerged around July 2023 but early signs indicate it won’t be a sustainable solution as it similarly empowers the Secretary of Commerce with those authorities to slash any foreign media.
As far as we can tell, the new attack on TikTok re-started after Warner’s RESTRICT Act failed. Commerce Committee Chair Sen. Cantwell (D-WA) found an ally in Secretary Raimondo (who is now claiming that EVs and electric batteries made in China are also a “national security threat”). Cantwell developed the Guard Act, which empowers the Department of Commerce to regulate pesky social media platforms, but it also failed to garner further sponsorship on the right because it did little to address concerns of first amendment violations.
Congress put the issue on the back-burner but then the terrorist attacks of October 7th happened. Israel’s brutal response in Gaza provoked opposition. Billionaire investor Bill Ackman called for TikTok to be banned on account of “manipulating public opinion” against the state of Israel. A leaked call from the head of ADL (Anti-Defamation League) director Jonathan Greenblatt also confirmed how anti-Israel posts on TikTok were perceived as a serious threat to Israel’s war on Gaza and the Biden administration’s support for it. But it was not all about silencing criticism of Israel. The pro-Israel lobby only added to the political support for the bigger agenda, which is decoupling the global Internet and the digital economy.
On March 5th, a bipartisan group of China hawks introduced H.R. 7521 in the house and a few days later the Justice Department briefed the House Energy and Commerce committee on the alleged threat of TikTok in two separate classified sessions. An unclassified summary document was shared on Twitter that repeats the same discredited accusations made a year ago: “key national security concerns (…) tremendous amounts of sensitive data (…) American users at risk.” The document is hastily written and unbefitting of US law enforcement or intelligence services. This passage is typical:
“TikTok’s source code and some operations are based in the PRC, which creates the potential for the PRC to exploit them for other potentially malign uses.”
The inability of the Justice Department to define actual exploitations and actual malign uses speaks for itself.
The summary also engages in deliberate disinformation. It repeats the debunked claim that Tiktok is spying on journalists, implying that this was done on behalf of the CCP. What really happened was that one journalist was spying on TikTok, getting employees or plants to record internal meetings. The company wanted to find out who was doing that and started monitoring some of its employees. Whatever one thinks of their actions, it was a private corporation in the U.S. protecting its own confidentiality against illegal spying, not a case of a foreign adversary spying on random Americans by using aggregate data of all TikTok users.
Realizing the existential nature of Congress’s latest efforts, TikTok prompted its users to lobby on its behalf. While it is not unprecedented for a big tech platform to mobilize its user base for a legislative issue, the way TikTok mobilized its users with a push-notification seems to have backfired. Representatives offices were flooded with calls and the House Energy and Commerce committee expedited the bill’s vote and passage without a hearing and the usual due process. Clearly, they didn’t want to hear from their constituents on this.
What changed since last year
…Nothing substantive about cybersecurity or privacy
One notable change, however, is that a significant chunk of Republican conservatives have mobilized systematically against social media censorship. The release of the Twitter files and the Murthy v. Missouri litigation about Biden administration efforts to suppress social media content have convinced many of them that giving the government more power over digital media is not a good thing.
Trump’s reversal from a ban position to a don’t ban position is the most obvious reflection of this change. Many media sources have pointed fingers at the co-founder of Susquehanna International Group billionaire Jeff Yass, an early investor in ByteDance, for changing Trump’s mind on TikTok. Yass is a large political contributor sponsoring the Club for Growth political action committee (PAC) that recently reconciled with the former President. But there’s more here than just the promise of money – as the opposition of conservative Rep. Nancy Mace made clear.
When it comes to the substance of the arguments levied against TikTok, we encourage the reader to refer to section 3 of our original study on TikTok and US National Security. The “sensitive data” is data that is routinely collected by companies in order to provide access to online services, and on social media most of the “sensitive” stuff – your face, your name, your recordings – is public. Further, unlike its direct competitor, TikTok does not ask users to disclose their real names, nor does it encourage the disclosure of employment and relationship information.
Those claiming “there’s reason to believe that TikTok might have tuned its algorithm to keep content critical of China from going viral” have yet to produce any longitudinal study of how TikTok US may have manipulated its algorithm in such a way to further a CCP agenda. Instead, search for all the CCP red flags – Falun Gong, Tiananmen square, Xinjiang oppression, Covid lockdown, Hong Kong economic slowdown, and see for yourself what content you are provided. Keep in mind also that most of what users upload to TikTok are entertainment-oriented or advertising or educational. Note also that the Biden campaign is on TikTok. At the risk of sounding like a broken record, there is no evidence to suggest disinformation is more prevalent on TikTok than any other social media platform.
The truth is we are dealing with the same hyperbolic and hypothetical claims that we have seen in the five years since CFIUS‘s national security review of ByteDance.
The implications of a forced ownership change
- This bill ratifies the idea that the USG has the right to control our access to foreign media.
The USG used to have bipartisan support an open, global Internet, limited liability for intermediaries, Section 230 of the Communications Decency Act and the First Amendment. This recipe allowed for the digital economy to thrive, and for U.S.-based technology firms to lead, because they harnessed the creativity and markets of a global system.
By re-framing access to commercial information service providers as a national security issue, we are abandoning the original vision of the Internet and playing by the rules of China, Russia and the Shanghai Cooperation Organization. Twitter, TikTok, and perhaps Reddit are the only mainstream platforms comprising the semblance of a public sphere with minimal censorship. With a TikTok ban, another escape route for banned topics will be blocked.
- Forcing domestic ownership of social media platforms threatens American platforms’ global presence and encourages retaliation against American firms in China
The USG hasn’t thought about second and third order effects. Not only will the last remaining US tech firms in China like Tesla, Microsoft and Apple be treated the same way, but countries like India and other governments pursuing digital sovereignty will be encouraged to adopt the same stance on foreign-owned media platforms.
Some pundits have claimed this story to be about trade reciprocity with China. It could be. But if trade with China is unfair then we need to deal with it using trade logic, not by declaring all trade in advanced electronics to be national security threats or by weaponizing the digital economies of both countries. As Representative Thomas Massie (R-KY) pointed out, phones are made in China through Apple subsidiaries and are subject to the same Chinese National Security and Cybersecurity laws. So are iPhones a national security threat subject to the manipulation of the CCP? If all data, software, network and device trade is a threat, then China is right to close off its digital economy.
The USG has acted in bad faith with TikTok from the get-go. The USG walked away from Project Texas yet TikTok moved ahead with the changes voluntarily at a heavy price to address USG concerns. Today, United States Data Security TikTok subsidiary oversees the data of US users, which is stored by default in the Oracle Cloud infrastructure, and TikTok is going through multiple rounds of deleting historical US users’ data in the US and Singapore. The USG could have had the insulation from ByteDance they claim to be pursuing but they haven’t acted to assign government employees as TikTok board members with reporting obligations to the USG.
At the end of the day, the Senate majority leader is doing an elaborate political calculus and will start pulling strings to make his preferred outcome a reality. The only certainty is that none of these machinations will have any bearing on your cybersecurity or privacy. This type of policy making, totally lacking in vision and long-term strategic goals, is yet another indication of the US abdicating its stature as world leader in the global digital economy.
Terrific!! Outrageous that media won’t cover this and USG is failing to act.